Clark v. Rowe

WILKINS, Chief Justice.

The plaintiff sustained losses in real estate investments that she attributed to the fault of the defendant Harvey Rowe, who was her lawyer, and to the fault of the defendant Shawn Potter, who was her banker.

After a trial of her various claims, judgment was entered for each defendant. The trial judge directed a verdict for Potter. In a special verdict, the jury decided certain claims in favor of Rowe, but also answered that Rowe, as lawyer for the plaintiff, was negligent in representing her in connection with the refinancing of a loan secured by property in Haverhill. That negligence, the jury found, was a substantial contributing cause of certain of the plaintiff's substantial losses. The jury also found, however, that the plaintiff was negligent in connection with that refinancing and that seventy per cent of all the negligence was hers and thirty per cent was Rowe's. The judge ordered the entry of judgment for Rowe, applying principles of comparative negligence to deny the plaintiff recovery for Rowe's malpractice in the refinancing of the Haverhill property. The plaintiff's principal contention in her appeal, which we transferred here on our own motion, is that comparative fault is inapplicable to her claim against Rowe. We affirm the judgments for Rowe and Potter.

We turn first to the question of the appropriateness of the entry of judgment in favor of Rowe notwithstanding the jury's special verdict in favor of the plaintiff. In her appeal, the plaintiff does not argue, as she did below, that the evidence was insufficient to submit the question of her contributory fault to the jury. There was evidence that she had substantial experience in real estate matters and was a sophisticated business person.

In her challenge to the judge's application of comparative fault principles to her claim against Rowe, the plaintiff runs into an insurmountable barrier. She did not preserve the issue for appellate review. The plaintiff did not object appropriately to the judge's jury instruction on the application of comparative negligence in this case. Counsel only objected to “all instructions on contributory negligence on the basis of our claim that there is insufficient evidence that Mrs. Clark was negligent.” There was no objection to the jury instruction insofar as it announced that the plaintiff's fault was an element to be considered.

“No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” . . . The plaintiff did not present an appropriate objection to the comparative negligence instruction. . . .

The plaintiff moved to expand the record to include her counsels' recollections of an unrecorded charge conference. . . . The trial judge denied the motion. If we were to consider the plaintiff's proffer, it would not support the conclusion that the purpose of rule 51(b), to put the judge on notice of the objection, was fairly met or that the objection was conclusively rejected in the charge conference. . . .

Although the issue was not preserved for appellate review, the question whether comparative fault can properly be considered in a malpractice action against a lawyer is unanswered in this Commonwealth. The issue is fully briefed and likely to arise in other cases. We choose in our discretion to discuss the issue. Moreover, the question of comparative fault comes up in dealing with the judge's ruling against the plaintiff on her G.L. c. 93A claim against Rowe, a matter we discuss briefly later in this opinion. . . .

The fact that a malpractice claim against a lawyer may be viewed as an action in contract does not make contributory fault automatically irrelevant. The standard of care normally applied is whether the lawyer failed to exercise reasonable care and skill in handling the client's matter, a classical tort negligence standard. . . . A malpractice claim does not sound exclusively in either contract or tort. . . . A lawyer's negligence may constitute a violation of an implied condition of the contractual relationship between lawyer and client but that does not foreclose the application of contributory fault principles to the client's claim.

[. . .]

. . . The plaintiff makes a persuasive argument that our comparative negligence statute does not apply to an action based on a claim of financial loss caused by a lawyer's negligence. That statute, G.L. c. 231, § 85, which is set forth in part in the margin, concerns recovery of damages for negligence “resulting in death or in injury to person or property.” The quoted language is a limitation on the word “damages.” If the injury to “property” included economic loss, little would be left of the limitation in § 85 that concerns property. Moreover, cases have suggested that pecuniary loss is not injury or damage to property. . . .

The inapplicability of § 85 to claims of legal malpractice does not dispose of the matter. The question remains whether we would apply the public policy considerations underlying § 85 to support a common law rule of comparative negligence in a case such as this. . . . Many courts in jurisdictions having a comparative negligence statute similar to ours (“damages ... resulting in ... injury to ... property”) have, expressly or implicitly, without even referring to the statute, recognized that contributory fault properly may apply in a malpractice action against a lawyer. We recognize the doctrine of comparative negligence in medical malpractice actions . . ., and there is no reason not to do so in legal malpractice actions. See Theobald v. Byers, . . .(“Doctors and dentists are held to this higher standard of care and their services can also be said to be of a fiduciary and confidential nature. Hence it would seem clear that similar rules of law would be applicable to all three professions”); Lyle, Siegel, Croshaw & Beale, P.C. v. Tidewater Capital Corp., . . . (“With respect to contributory negligence, we discern no logical reason for treating differently legal malpractice and medical malpractice actions.”); Cicorelli v. Capobianco, . . . (“[T]he courts of this State have recognized that both physicians and attorneys may plead subsequent negligence by other parties as a mitigating factor”). Cf. Somma v. Gracey, . . . ( “[w]e see no basis for distinguishing between actions for legal malpractice and other claims sounding in negligence”); . . .

Comparative fault appropriately applies to a client's claim of malpractice by a lawyer. See Pinkham v. Burgess, . . . (“[a]ll of the courts that have considered the issue have held that the defense of contributory negligence applies in legal malpractice actions, despite the fiduciary nature of the attorney-client relationship”). The limitations on recovery stated in G.L. c. 231, § 85, appropriately guide us to adopt them as a common law rule. Because the plaintiff's negligence exceeded that of the defendant Rowe, the judge was correct in entering judgment for Rowe on the count alleging malpractice.

[. . .]

We add that there are bases for the civil liability of a lawyer apart from a claim of malpractice. Intentional breaches of fiduciary duties, such as the misappropriation of funds, surely can be a basis for attorney liability. Breaches of client confidences, inappropriate conflicts of interest, and the use of advantages arising out of the client-lawyer relationship may be intentional wrongs or may be negligent acts depending on the circumstances. If a breach of one of these fiduciary duties is a substantial cause of injury to the client, the lawyer could be liable to the client. We need not decide the extent to which, if at all, the client's negligence in particular circumstances would reduce or eliminate the client's right to recover damages for the lawyer's breach of fiduciary duty.

[. . .]

Judgments affirmed.